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How Does Section 245(i) Help Applicants Adjust Status in the U.S.?
For some applicants, the manner in which they entered the United States or a prior immigration status violation would normally prevent them from adjusting status. Section 245(i) can help overcome some of these barriers, including entry without inspection, visa overstay, or failure to maintain lawful status.
To qualify, an applicant generally must be grandfathered, meaning they were covered by a qualifying immigrant visa petition or labor certification filed on or before April 30, 2001. The filing must also have been properly filed and approvable when filed.
Some applicants must also meet a physical presence requirement. If the qualifying petition or labor certification was filed after January 14, 1998, the applicant generally must show that they were physically present in the United States on December 21, 2000.
Section 245(i) does not provide a separate basis for permanent residence. Applicants must still qualify for a Green Card through an available immigration category and meet the other requirements. Instead, Section 245(i) allows eligible applicants to overcome certain barriers to adjustment and apply for permanent residence without leaving the United States.
Who May Qualify for Adjustment of Status Under Section 245(i)?
Section 245(i) may apply to people who were connected to a qualifying petition or labor certification. This may include:
Principal beneficiaries: The person named as the main beneficiary of the qualifying petition or labor certification.
Derivative beneficiaries: In some cases, a spouse or child who qualified as a derivative beneficiary may also be grandfathered.
Applicants using a different petition: The original filing that established grandfathering does not always have to be the same petition used to apply for permanent residence later.
Being grandfathered does not automatically make someone eligible for a Green Card. The applicant must still have a current basis for permanent residence, meet the other adjustment of status requirements, and generally pay the additional Section 245(i) penalty fee.
What Else Should You Know About Section 245(i)?
Several additional rules can affect how Section 245(i) applies. These include what makes an old filing valid for grandfathering, how physical presence can be proven, the penalty fee, and immigration issues that Section 245(i) does not resolve.
Does the Original Petition Have to Have Been Approved?
No. A qualifying immigrant visa petition or labor certification did not have to be approved by April 30, 2001. However, it generally must have been properly filed and approvable when filed.
This means an old filing may still establish grandfathering even if it was later withdrawn, denied, or revoked for reasons that arose after it was filed, depending on the circumstances.
How Can You Prove Physical Presence?
Certain applicants must show that they were physically present in the United States on December 21, 2000. Documents from around that time may help establish physical presence, including:
Employment or payroll records
School records
Medical records
Bank or financial records
Rental, utility, or other dated records
The physical presence requirement generally applies to certain beneficiaries of qualifying filings made between January 15, 1998, and April 30, 2001.
Is There a Penalty Fee for Section 245(i)?
Applicants adjusting status under Section 245(i) generally must pay a $1,000 penalty in addition to the regular adjustment-of-status filing fees.
Paying the penalty does not waive other filing fees or make someone otherwise eligible for a Green Card. The applicant must still meet the separate requirements for adjustment of status.
What Problems Does Section 245(i) Not Fix?
Section 245(i) can overcome certain adjustment barriers related to unlawful entry and immigration status violations, but it does not waive every immigration problem.
Issues that may still affect an application include:
Certain criminal convictions
Fraud or misrepresentation
Prior removal or deportation
Certain health-related grounds
Other grounds of inadmissibility
Some immigration issues may have separate waivers or forms of relief, but Section 245(i) itself does not resolve them.
How Does the Section 245(i) Adjustment Process Work?
The adjustment process under Section 245(i) depends on the applicant’s immigration history, qualifying petition or labor certification, and whether an immigrant visa is available. The process generally includes:
Confirm Section 245(i) eligibility: Determine whether a qualifying petition or labor certification was filed by the required deadline and whether the applicant meets any applicable physical presence requirement.
Confirm that a visa is available: Applicants generally must have an immigrant visa immediately available in their category before they can adjust status. Family-preference applicants may need to wait until their priority date is current.
File the adjustment application: When eligible to apply, the applicant generally files Form I-485 with the required supporting documents and fees. Applicants relying on Section 245(i) also submit the required Section 245(i) documentation and penalty fee.
Attend biometrics if required: USCIS may schedule an appointment to collect fingerprints, a photograph, and other identifying information.
Attend an interview if scheduled: USCIS may interview the applicant about the adjustment application, immigration history, and the qualifying filing that supports Section 245(i) grandfathering.
Respond to additional requests if necessary: USCIS may issue a Request for Evidence or otherwise ask for additional documents before making a decision.
Receive a decision: USCIS reviews whether the applicant qualifies for adjustment of status, including whether Section 245(i) overcomes the applicable adjustment barriers and whether any other grounds of inadmissibility apply.
When Should You Talk to an Attorney About Section 245(i)?
Consider speaking with an immigration attorney if you are unsure whether an old petition or labor certification qualifies you for Section 245(i), cannot locate records from the original filing, or need to establish physical presence on the required date.
Legal guidance may also be useful if you have a prior removal order, criminal history, immigration fraud or misrepresentation issue, or another ground of inadmissibility that Section 245(i) may not overcome. An attorney can help determine how grandfathering applies and whether you meet the separate requirements for adjustment of status.
If you have questions about Section 245(i) eligibility or the adjustment process, consider contacting Andrew T. Thomas, Attorneys at Law.
Frequently Asked Questions About Section 245(i) Adjustment of Status
Does Section 245(i) Give Me a Green Card?
No. Section 245(i) does not create a separate basis for permanent residence. It allows certain people who would otherwise be unable to adjust status because of their entry or immigration status violations to apply from within the United States. You must still have a qualifying basis for a Green Card and meet the other requirements for adjustment of status.
Can I Use a Different Petition From the One That Grandfathered Me?
Potentially, yes. A qualifying petition or labor certification filed by the April 30, 2001, deadline may establish grandfathering even if it is not the petition you later use to seek permanent residence. You must still independently qualify for adjustment through the later immigration basis.
What If My Old Petition Was Never Approved?
A petition need not have been approved to provide grandfathering under Section 245(i). However, it generally must have been properly filed and approvable at the time, meaning it met the applicable requirements when submitted.
How Can I Prove I Was in the U.S. on December 21, 2000?
For applicants subject to the physical presence requirement, records from around that period may help establish presence in the United States. Examples can include employment, school, medical, financial, or other records showing that you were in the country at the required time.
Does Section 245(i) Waive Other Immigration Problems?
No. Section 245(i) can overcome certain adjustment barriers related to unlawful entry and immigration status violations, but it does not waive every ground of inadmissibility. Criminal convictions, fraud or misrepresentation, prior removal or deportation, and certain health-related grounds may still affect eligibility.